Anti Kickback Statute

Pharmaceutical Kickbacks to Doctors and Physicians Are Illegal

Anti Kickback Law Summary

In 1977 congress brought in a law which became one of the most influential of statutes within the health care industry. This statute is known as the Federal Anti-Kickback Law. It was brought in to shape up the health care sector and covers Medicare, Medicare and private practice. It arose out of concerns that pay offs were being made to those who had a big influence on health care decisions which often resulted in services and goods being provided that were either unnecessary, inappropriate, or at worst poor quality.

Antikickback Whistleblower Protection

The Anti Kickback Statute is without doubt extremely complex but necessary to prevent corruption within business. If you think that your company is guilty of violating this act, then it is always best to consult with an attorney who can explain your rights. The Law Offices of David H. Greenberg has a team of experienced attorneys who can help advise you on whether or not something illegal is going on at your company. We take cases from all fifty states and you can call us at 1-888-204-1014 for a free consultation. The long and the short of it is that if you think your company is violating this law, you should get in touch with a lawyer right away. You should know that whistleblowers are protected under this law, and you could actually receive a monetary reward if you have uncovered illegal activity.

Kickbacks for Healthcare Referrals Are Illegal

The main part of healthcare that the anti kickback statute focuses on is the area of referrals. This is an area of health care that has been rife with corruption in the past. For example huge pharmaceutical companies were not averse to paying large sums of money to foreign doctors, who would then endorse or refer their latest products. The law is designed to put an end to the business of compensating anyone in order to encourage the practice of recommendations or referrals of another party, entity or product. This includes drugs supplied by the pharmaceutical companies. They are not allowed to offer doctors products, services or money in return for promoting their products or drugs.

Violations of the Anti-Kickback Statute

The antikickback statute is classified as a criminal law and it prohibits any company or person from arranging, giving or accepting any gifts, discounts or party cross referral, either directly or indirectly, in order to make either a financial or business gain. It is very broad and quite complex in nature and as well as referrals it also covers things such as leasing, ordering, and the purchasing of any items which are paid for by a health care program in exchange for personal financial gain. Anyone or any party who violates these conditions can expect to do some time in jail, incur criminal fines, and be excluded from any health care program such as Medicaid or Medicare. These tough penalties can apply to either the giver or the receiver of the gift, whether that is a physical item or monetary gain.

Proving a Violation of the Federal Anti-Kickback Law

In order to be found in violation of this law the person or parties engaged in the activity must have intended these activities. The parties do not actually have to break the law and indeed no such transaction may have actually taken place, but it is enough that the intention was there. As you can probably imagine, the proving of 'intention' might be a little tricky; however there are a list of questions that prosecuting attorneys can use to prove violation as follows;

Does the health care facility or person involved provide anything of any value to a person or persons who may be in a position to influence decisions about that facility or person?

Does the health care facility already receive anything of any value from any person or entity for which the facility can generate federal healthcare program opportunities?

If yes to any of the above could they done either directly or indirectly?

Although the answers to these questions could be yes, it may still not be enough to prove intent. There are also other factors that a prosecuting attorney may want to take into account such as:

Does the current business arrangement between the two parties have the potential to change any clinical decision policies?

Does the arrangement have the potential to increase costs to any beneficiaries or federal health scheme?

Is it likely to raise any concerns over patient care?

If the arrangement is supposedly above board, are the payments that are made between the parties consistent with that of a fair market value?

Safe Harbors for Antikickback

As you can see, because of the broadness of this law, it may have the ability to potentially capture legitimate transactions or business deals with legitimate purpose. Therefore in order to stop this from happening, the government has developed a set of regulations known as 'safe harbors'. These can include:

Investment interests

Space rental

Management contracts and personal services

Health records

Managed risk and patient care.

Each of these areas is considered 'safe harbors' in which businesses can legally operate and are covered by a separate and very detailed federal regulation. They are extremely technical in nature and are probably not something that a layman would fully understand without some type of legal advice.

Referrals for Nursing Homes

While referrals are illegal for pharmaceutical companies and doctors, they can and are made legally as in the case of nursing facilities or care homes. They often receive referrals regarding new residents from sources such as;

Hospitals and discharge planners

Physicians

Hospices

Various other healthcare agencies

Other nursing facilities or care homes

Nursing facilities and indeed care homes are allowed to make referrals for services which are paid for by the government to other healthcare groups such as;

Laboratories

Long term care facilities

Medical equipment manufacturers

Hospices

Occupational, speech and physical therapy companies

Diagnosis and testing facilities

Hospitals

However it is important to point out that under the anti kickback law the government will closely monitor any business arrangement that relates to payment for any services or referrals made, and they must comply within the boundaries of the law. If a similar arrangement was in any other setting other than within the healthcare sector, then it would be considered inappropriate by the government.